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Файл:Ограничение прав должника. Новеллы законодательства и практика применения =The restriction of the rights of the debtor. The latest legislative changes
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J. Toukola. Recent developments in the area of enforcement in Finland
license to serve alcohol, transport entrepreneurs may lose their operating
license, and lawyers may lose their membership in the Bar Association and
are no longer allowed to use the title of advocate. However, enforcement
authorities do not use these measures; rather, they are a result of the fact that
the debtor has been found insolvent.
Plans for restructuring enforcement
Finnish enforcement has been heavily renewed during the last 15 years,
but demands for even greater reforms remain. This is mainly influenced by
the rapid development of IT, but also by state financial factors. Public sector
spending is under scrutiny and must be reduced. However, the reforms must
be carried out without compromising legal protection.
The restructuring of enforcement is in progress. Needs for restructuring
the organisation, the enforcement procedure, legislation, officers’ duties,
information technology and the staff structure are all considered. This means
that the overall enforcement function is reviewed. The goal is a 20 per cent
reduction in staff through digitalisation and organisational development.
In August, the Minister of Justice furthered the restructuring and local enforcement offices are given up and we move to a model under one authority.
Thus, the enforcement authorities will work as one authority in the whole
country, with offices where they are viewed as necessary. Functions will be
centralised to a national level whenever possible. Of course, functions may
be carried out in many different locations, as activities are carried out in a
network. Other duties are carried out in different regions. This solution improves a consistent procedure and enables balancing the workload between
different parts of the country by using a national work stack.
Regarding the enforcement procedures, plans have been made for dividing
the enforcement into routine debt collection, where debtors’ cases are handled
via computer and visits to debtors are not needed. These tasks may include
demands for payment, payment plans, distraint on salaries and other recurring income, distraint on tax refunds and distraint on bank accounts. If these
measures do not suffice, a full investigation is started, where an order to obtain
information is carried out, the debtor’s property is distrained and sold and
other actions, such as evictions, are carried out. Approximately 70 per cent
of enforcement cases could be carried out in routine enforcement. This type
of enforcement may also be centralised on a national level. Investigations
will be carried out on a local level in all areas, as they require actions locally.
Special distraint will continue for more complex cases and cooperate closely
with the police, the tax authorities and customs authorities.
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II. Enforcement procedure in foreign countries
The restructuring of enforcement is a great effort for the enforcement
authorities and it is planned to be finished by the end of 2018. It requires parliamentary processing in order to create new regulations and possibly difficult
collective bargaining with unions regarding staff benefits. The restructuring
requires the enforcement administration’s resources for many years. The
restructuring is estimated to reduce state spending on enforcement by 10 to
15 per cent. As enforcement currently covers some 75 per cent of its spending
by client fees, enforcement could be practically almost free for the state once
the restructuring has been carried out.
FARID EFENDIYEV,
Counselor of Justice, Deputy Chief
of the General Executive Department
of the Ministry of Justice of the Republic of Azerbaijan
Development of enforcement legislation
and measures on increase
of efficiency of performance
he efficiency of court decision enforcement is based on strong legislation
T
and is directly dependent on the level of socio-economic development
of the society.
After the Azerbaijan state independency restoration under the direction
of Heydar Aliyev, the nationwide leader, democratic reforms in all spheres
of social life were carried out, national legislation was improved, up to two
thousand new progressive laws and up to six thousand other normative-legal
acts were passed. Our country acceded to almost three hundred international
conventions, including those related to human rights; its legal system underwent profound changes, and an independent three-tier judicial system was
established.
As a result of these reforms the judicial authorities’ functions and powers
have expanded, increasing their role and importance in the society. In the
last few years over a hundred legal acts related to the work of justice have
been passed.
However, it should be noted that in conditions of armed aggression of
Armenia against Azerbaijan and the ongoing occupation of about twenty
percent of the country’s territory, more than one million of our compatriots
became refugees and internally displaced persons. It created a number of
problems connected with housing provision, employment, etc., complicating the work of the enforcement authorities in respect of the most socially
vulnerable category of citizens.
At the same time the rapid economic growth of the country and therefore
living standards allowed for poverty reduction and fast development in all
spheres of the society, including the state legislation.
The growing authority of the court in the society led to an increase in the
number of appeals to the courts and civil affair cases, which consequently led
to an increase in the number of enforcement proceedings.
Thus, in the last ten years the number of cases considered in courts has
increased more than 5 times. The number of enforcement documents and
execution orders rendered to the service and not connected with deprivation
of freedom has reached almost 300 thousand in 2014. This dynamic continues; and almost as many cases were proceeded in the first half of 2015. For
comparison, I would like to note that in 2005, the enforcement officials had
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F. Efendiyev. Legislative improvement in Azerbaijan
less than 60 thousand enforcement cases. At the same time, the enforcement
of 70 to 90% of the enforcement documents over the last 10 years indicates
the effectiveness of court decision execution.
The enforcement institution has undergone significant changes in the
recent period and it was marked by dynamic development. Only in the last
10 years up to 40 laws and other normative acts were passed in this field,
including 15 legislative acts related to the amendments to the Law of the
Republic of Azerbaijan dated December 28, 1999 “On enforcement officials”
and the law of the Azerbaijan Republic dated December 27, 2001 “On enforcement”. On the basis of the Decree of the President of the Azerbaijan
Republic the head of state is provided with the court decision enforcement
information every six months.
The Enforcement service was formed within the structure of the Ministry of
Justice, alongside with the necessary conditions for its work and the legal basis
improvement. After the approval of the “Regulations on the Ministry of Justice”
by the decree of the President of the Republic of Azerbaijan dated April 18, 2006,
as well as passing the Law “On service in judicial authorities” from May 26, 2006
on the basis of the former Bureau of judicial inspectors and enforcement officers
the Chief Department of enforcement officers (currently the chief Enforcement
Department) was established in the Ministry of Justice. Since then the Service
several times underwent reorganization, including the increase of staff by 55%,
the establishment of the territorial enforcement administration and departments,
the introduction of the department deputy heads posts.
The legislation development on regulating the court decision enforcement, as well as recent changes, is mostly aimed at ensuring the enforcement
efficiency, increased responsibility for non-execution of the enforcement
documents and the enforcement authorities strengthening.
In the Republic of Azerbaijan the enforcement officials work as enforcement authorities (art. 2 of the Law “On enforcement”). Their requirements
are obligatory for all authorities, legal entities, officials and individuals. A failure to fulfill the enforcement officials’ requirements or obstruction of their
enforcement duties entails judicial liability.
Within 3 days after receiving the enforcement document the enforcement
official initiates the proceedings and sets a 10 day period for voluntary execution of the enforcement document (art. 8 of the Law “On enforcement”).
A debtor who fulfilled the enforcement document requirements within
the period of voluntary execution, shall be exempt from the enforcement fee
payment (7% of the amount recovered from the debtor on the basis of the
enforcement document, and 11 manats for individuals, 55 manats for legal
entities-debtors for non-property claims).
285
II. Enforcement procedure in foreign countries
In case the enforcement document requirements were not fulfilled within
the stated timeframe, the enforcement official initiates the enforcement
process. The grounds for the enforcement proceedings are:
– the possession of the enforcement document by the enforcement officer;
– the enforcement officer decree on the proceedings initiation;
– expiration of the voluntary execution period (art. 44 of the Law
“On enforcement”).
The enforcement measures are:
– foreclosure on the debtor’s property through its seizure and subsequent
sale;
– levy on salary, pension, scholarship and other sources of income of
the debtor;
– levy on funds and property of the debtor held by third parties;
– the seizure of the objects stated in the enforcement document in favor
of the claimant;
– other actions provided by law (art. 43 of the Law “On enforcement”).
Recovery appeals are primarily aimed at the monetary funds in national or
foreign currency (art. 45 of the Law “On enforcement”). Cash (in manats or
foreign currency) recovered from the debtor is withdrawn and sent to the bank
on the same day to be transferred to the claimant’s account in the amount
of the debt, but also to the state revenue in the form of the enforcement fee
(25% of this amount goes to the state budget, 75% – to the special fund of
the enforcement officials).
Funds provided for the reimbursement of expenses on the enforcement
actions are transferred to the deposit account of the enforcement institution.
The enforcement officer takes measures to seize the debtor’s funds on bank
accounts and deposits or in escrow with banks or other credit institutions.
In case the debtor’s funds are insufficient to recover the debt, the enforcement
shall be imposed onto other property belonging to the debtor on the basis
of ownership (except for property withdrawn from transaction or limited in
transaction). The seizure of such property or other enforcement actions are
carried out in the manner prescribed by the Law “On enforcement”. Finding the property belonging to the debtor by the right of ownership in another
place and at another person shall not exempt the property from foreclosure.
The seized property of the debtor, except property withdrawn by law from
transaction or the transaction of which is limited, regardless of the cause of
arrest, type and ownership of the property, is offered to the claimant, if the
legislation of the Azerbaijan Republic does not stipulate otherwise. Upon
refusal of a claimant the property shall be sold within three months from the
date of the claimant’s refusal. The debtor’s property is sold through open
286
F. Efendiyev. Legislative improvement in Azerbaijan
auction by specialized agencies, created in accordance with the legislation
in commodity exchanges and having the right to conduct such operations.
The information on the auctioned property is published online on the official
website of the Ministry of Justice of the Republic of Azerbaijan, in addition
the process of the auction is broadcasted online.
Chattel with a value of not more than 500 manats can be sold in distribu-
tion networks, specified by the enforcement service, on the grounds of the
respective agreement. If the property is not sold, it is re-offered to the claimant. In case the claimant refuses the property it is returned to the debtor, and
the enforcement document is sent back to the court or other authority that
issued it (art. 53 of the Law “On enforcement”).
In case the debtor fails to execute the enforcement document issued on the
basis of judicial decision within the period of voluntary execution without a
valid reason, the right of the debtor to leave the country may be temporarily
restricted by the court decision on the basis of reasonable representation of the
enforcement officer. The enforcement officer immediately notifies the debtor,
the claimant and the respective enforcement authorities on the temporary
restriction of the debtor’s right to leave the country.
After elimination of reasons that caused the temporary restriction of the
debtor’s right to leave the country, the enforcement officer makes the decision to cancel this restriction, which shall be approved by the head of the
enforcement structure. This decision is immediately sent to the debtor, the
creditor, the court and the respective enforcement authority. The data on
restriction of right to leave the country in respect of the debtors is provided
by an online e-service which operates on the official website of the Ministry
of Justice of the Republic of Azerbaijan.
In case of evasion of execution of judicial or other act the enforcement
officer is authorized to bring the debtor to liability for administrative and
criminal offence.
We should note that the obligation to execute the court decision rendered
on behalf of the state, as well as the responsibility for non-execution, is reflected in the Constitution of the Republic of Azerbaijan (art. 129 “Judicial
decisions and their execution”).
According to art. 313-1 of the Code of the Republic of Azerbaijan on
administrative violations for failure to comply with the requirements of the
enforcement officers in course of the enforcement of judicial and other authorities decision the individuals are fined from 500 to 1000 manats, officials – from 1000 to 3000 manats, legal entities – from 3000 to 5000 manats.
In addition, this article provides for administrative detention of the debtor
for up to 1 month. It should be noted that the number of debtors brought to
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II. Enforcement procedure in foreign countries
administrative liability under this article for the last 10 years has increased
more than 7 times; measures imposing the administrative penalties are quite
effective for certain types of enforcement proceedings, for example in alimony
cases.
In accordance with art. 306 of the Criminal Code of the Republic of Azer-
baijan non-compliance or obstruction of judicial decision, sentence, order
or other judicial act shall be punished by a fine from 1,000 to 3,000 manats,
or public works for a period of 320 to 480 hours, or correctional labor for up
to 2 years, or by deprivation of liberty for a term of up to 3 years. The same
acts committed by an official, shall be punished by a fine in the amount from
4,000 to 6,000 manats, or correctional labor for up to 2 years, or by deprivation of liberty for a period from 3 to 5 years with deprivation of right to occupy
certain positions or engage in certain activities for a term of up to 3 years.
It should be noted that as a result of amendments to the criminal Code of
the Republic of Azerbaijan, art. 176, which provided for liability for persistent
evasion from children or parents support, was cancelled and the acts that were
previously qualified under this art. of the criminal code, now qualify under
art. 306 (non-execution of court sentence, decision or other act) that provided
for more severe punishment for acts of great public danger.
It is noteworthy that, on average, in every fourth appeal to bring the
offender to criminal liability for alimony non-payment, received by the Investigation Department of the Ministry of Justice, the proceedings were
discontinued due to the fact that the debtors showed sincere repentance and
fully repaid their alimony debt.
Deliberate evasion from accounts payable repayment stated in the legal
court decision (art. 196 of the criminal code) is punishable by a fine in 2-fold
amount of the caused damage, or correctional labor for up to 1 year, or by
deprivation of liberty for a term of up to 3 years with deprivation of right to
occupy certain positions or engage in certain activities for a term of up to
3 years. The same acts that caused large damage shall be punished by a fine
of in 3-fold amount of damages, or correctional labor for up to 2 years, or by
deprivation of liberty for a period from 3 to 5 years with deprivation of right
to occupy certain positions or engage in certain activities for a term of up to
3 years. This article provides for the criminal prosecution of both individuals
and legal entities.
The enforcement officials are also authorized to address superior orga-
nizations on the issue of taking measures to eliminate circumstances that
create conditions for officials’ unlawful actions of enforcement documents
non-execution. The results of this appeal consideration are to be revealed
within 1 month.
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F. Efendiyev. Legislative improvement in Azerbaijan
To ensure that children, who are the most vulnerable members of the
society, are effectively protected and provided the necessary material and
living conditions for growing up, the situation of court decision enforcement
on alimony payment is constantly consolidated and analyzed. The experience
of the CIS countries and Europe in this area is subject to studies, as well as
the practice of the countries where offenders evading alimony payment are
restricted in their rights to drive a vehicle, they are not issued a certificate of
vehicle inspection, the lose their hunting and fishing licenses and have their
photos and detailed information posted on the Internet, matchboxes and
cartons. The names of individuals evading alimony payment are included
in the list of dishonest customers, thereby worsening their credit rating, etc.
It should also be noted that along with their legislative duties, the en-
forcement officials assist the non-working debtors on employment, provide
explanation of social payments procedure, increasing amount of child support, alimony repayment from persons living abroad, etc.
At the same the everyday work of the enforcement service, including
the process of judicial decision enforcement and measures taken against
individuals who evade alimony payment, is represented through the media
means, including television and radio, to provide legal education for the
citizens. The possibility of making amendments to the existing legislation
to determine the minimum amount of child support, the establishment and
funding of the alimony fund, determining administrative penalties and stricter
criminal punishment of individuals who deliberately evade alimony payment,
the determination of responsibility for the repeated crime commitment of
non-executing the court decision (including the repeated alimony evasion)
are currently considered.
At the same time the European countries experience and legislation in
the field of private enforcement, the effectiveness of the private enforcement
officials and the possibility of private enforcement institute application are
also discussed and studied in the Republic of Azerbaijan.
For the purpose of increase of performance efficiency, we are working
on creating an innovative electronic system – a data bank of enforcement
documents, which will include integrated information resources of respective
government agencies (registry and data on real estate, vehicles, bank accounts,
etc.), including automatic SMS alert function.
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